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Case C-376/08: Judgment of the Court (Fourth Chamber) of 23 December 2009 (reference for a preliminary ruling from the Tribunale amministrativo regionale per la Lombardia (Italy)) — Serrantoni Srl, Consorzio stabile edili Scrl v Comune di Milano (Public works contracts — Directive 2004/18/EC — Articles 43 EC and 49 EC — Principle of equal treatment — Groups of undertakings — Prohibition on competing participation in the same tendering procedure by a consorzio stabile ( permanent consortium ) and one of its member companies)
ECLI:EU:UNKNOWN:62008CA0376
62008CA0376
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27.2.2010
Official Journal of the European Union
C 51/9
(Case C-376/08) (<span class="super">1</span>)
(Public works contracts - Directive 2004/18/EC - Articles 43 EC and 49 EC - Principle of equal treatment - Groups of undertakings - Prohibition on competing participation in the same tendering procedure by a ‘consorzio stabile’ (‘permanent consortium’) and one of its member companies)
2010/C 51/13
Language of the case: Italian
Referring court
Parties to the main proceedings
Applicants: Serrantoni Srl, Consorzio stabile edili Scrl
Defendant: Comune di Milano
Intervening parties: Bora Srl Construzioni edili, Unione consorzi stabili Italia (UCSI), Associazione nazionale imprese edili (ANIEM),
Re:
Reference for a preliminary ruling — Tribunale amministrativo regionale per la Lombardia — Interpretation of Articles 39 EC, 43 EC, 49 EC and 81 EC and of Article 4 of Directive 2004/18/EC of the European Parliament and of the Council of 31 March 2004 on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts (OJ 2004 L 134, p. 114) — National legislation providing for the automatic exclusion of member companies of a consortium of economic operators, where the consortium itself participates in the procedure.
Operative part of the judgment
Community law must be interpreted as precluding national legislation, such at that at issue in the main proceedings, which provides that, when a public contract is being awarded, with a value below the threshold laid down in Article 7(c) of Directive 2004/18/EC of the European Parliament and of the Council of 31 March 2004 on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts, but of certain cross-border interest, both a permanent consortium and its member companies are automatically excluded from participating in that procedure and face criminal sanctions where those companies have submitted tenders in competition with the consortium’s tender in the context of the same procedure, even if the consortium’s tender was not submitted on behalf and in the interests of those companies.
(<span class="note">1</span>) OJ C 327, 20.12.2008.